Gandhi Video Parlour vs State of Punjab and Others

G.S. Singhvi, J.—A temporary licence was issued by the District Magistrate, Kapurthala in favour of the petitioner/appellant u/s 5 of the Punjab Cinemas (Regulation) Act, 1952 (hereinafter referred to as ''the Act'') for running a video parlour at Loha Mandi Road, Phagwara, District Kapurthala. However, just after two months, the competent authority suspended the licence granted to the petitioner/appellant primarily on the ground that the licence had been issued in violation of Rule 19(A)(i) of the Punjab Cinemas (Regulation) Rules, 1952 (for short, ''the Rules''). The petitioner/appellant unsuccessfully appealed against the order dated 8.9.1987 passed by the District Magistrate. The Additional Chief Secretary, Punjab dismissed the appeal by holding that violation of the principles of natural justice by the licensing authority was merely an irregularity and it did not affect the validity of the order passed by the said authority.

The writ petition filed by the appellant against the orders passed by the District Magistrate and the Additional Chief Secretary has been dismissed on the ground that the licence granted to it was contrary to the provisions of the Act and the Rules.

Shri Shailendra Sharma, learned counsel for the appellant argued that the learned Single Judge has seriously erred in dismissing the writ petition even after recording a finding that the order passed by the District Magistrate Was contrary to the principles of natural justice. Learned counsel argued that Section 8(2) of the Act is mandatory and due to non-compliance of the requirement of hearing, the order passed by the District Magistrate should have been declared as void. He further argued that the licence was granted by the competent authority on the basis of the reports of the Tehsildar and Sub Divisional Magistrate, Phagwara and, therefore, it was the duty of the licensing authority to give action-oriented notice to the appellant and hear it before an order adversely affecting its rights and interest could be passed. Shri Sharma vehemently argued that the Additional Chief Secretary as well as the learned Single Judge have grossly erred in over-looking the fact that the appellant had invested his life long earning in establishing the Video Parlour and the violation of the principles of natural justice has resulted in failure of justice. Learned Deputy Advocate General argued that though the District Magistrate did not act in consonance with the principles of natural justice, the Additional Chief Secretary and the learned Single Judge have rightly declined interference with the order of the District Magistrate because the grant of licence to the petitioner/appellant was contrary to the mandatory provisions of the Act and the Rules. Shri Khosla stated that the Tehsildar had given a false report regarding location of the premises where the petitioner/appellant wanted to run the Video Parlour and the Sub Divisional Magistrate, Phagwara derelicted in the discharge of his duties to inspect the premises before submitting his report to the District Magistrate. He submitted that these lapses on the part of the authorities cannot clothe the Petitioner/appellant with a right to seek an order for sustaining the licence issued in its favour in complete disregard of the statutory provisions.

Having considered the rival contentions, we are of the opinion that the order passed by the learned Single Judge does not call for interference in this appeal.

There is no dispute between the parties that on receipt of the application filed by the petitioner the licencing authority directed the Sub Divisional Magistrate, Phagwara to conduct an enquiry about the location of the site. The then Tehsildar, Phagwara submitted a report that the proposed location of the Video Parlour was not contrary to the provisions of the Act and the Rules. The Sub Divisional Magistrate, Phagwara did not bother to inspect the site. Instead, he made recommendation on 12.11.1986 that the licence be granted to the petitioner/appellant. Relying on the recommendation of the Sub Divisional Magistrate, the District Magistrate granted licence to the petitioner/appellant on 6.7.1987. Within 17 days, there were protests from the citizens who demanded closure of the Video Parlour on the ground that the same was situated near two Mandirs and was causing nuisance to the devotees. Under the direction of the District Magistrate, Sub Divisional Magistrate inspected the site and reported that one ''Shriram Mandir'' was situated within 10 yards of the location of the Parlour and Sanatan Dharam Mandir was situated at a distance of about 25 yards. On the basis of these facts, the Sub Divisional Magistrate recommended the cancellation of the licence. The District Magistrate accepted the report of the Sub Divisional Magistrate and ordered the suspension of the licence. Learned counsel for the appellant has not been able to show that the finding recorded by the Sub Divisional Magistrate in his subsequent report regarding the location of the two temples is factually incorrect. Thus, there is no escape from the conclusion that the licence was granted to the petitioner/appellant on the basis of a patently false report submitted by the Tehsildar.

Section 5 of the Act lays down that the licencing authority shall not grant a licence unless it is satisfied that the rules made under the Act have been complied with and adequate precaution has been taken in the place, in respect of which licence is to be given to provide for the safety of the persons attending the exhibition therein. Rule 19 of the Rules lays down the conditions which must be satisfied qua the building where the film is to be exhibited. This rule requires that the building shall not be within a radius of 60 meters (if it is sound proof) and 200 meters (if it is not sound proof) from a place of worship, cremation ground, grave-yard, cemetery, recognised educational institution, any residential institution attached to such educational institution, public hospital or an orphanage containing one hundred or more inmates. The radius of 60/200 meters is required to be measured from the exit of the auditorium of the cinema building. The idea behind incorporation of these restrictions is to prevent nuisance near the places of worship, cremation ground, graveyard etc. Therefore, the District Magistrate was perfectly justified in suspending the licence as soon as he received the report that the licence was granted to the petitioner/appellant on the basis of a patently wrong report submitted by the Tehsi dar about the location of the Video Parlour.

We are in complete agreement with the learned Single Judge that Rule 19 of the Rules is mandatory and a licence granted in violation thereof is void. We are also in agreement with the learned Single Judge that though the order of the District Magistrate is contrary to the rules of natural justice, it does not warrant interference because no prejudice has been caused to the appellant and the hearing afforded by the appellate authority was more than sufficient to compensate for the violation of the rates of natural justice by the licencing authority.

That apart, we are of the opinion that in such type-of cases the writ jurisdiction does not deserve to be exercised in favour of the petitioner/Issuance of a writ to quash the order of suspension of the licence would amount to restoration of the licence which was secured by the petitioner/appellant on the basis of a false report and there is sufficient justification to presume that the Tehsildar submitted such report at the behest of the petitioner. Thus, the grant of relief to the appellant would amount to permissive abuse of Court''s jurisdiction under Article 226 of the Constitution.

Before parting with the case, we deem it necessary to observe that the respondents have failed to take appropriate action for preventing similar incidents in future. In our opinion, the District Magistrate should have taken appropriate action against the defaulting official as soon as he came to know about the false report of the Tehsildar on the basis of which the appellant could secure the licence. Appropriate action should have been taken by the District Magistrate against the Tehsildar as also against the Sub-Divisional magistrate concerned. Those who abetted the violation of the provisions of law should not have been left unpunished. Therefore, we deem it proper to direct the State Government to hold an enquiry against the officers who were working as Tehsildar, Phagwara and Sub Divisional Magistrate, Phagwara at the relevant time and who were responsible for securing the grant of licence to the appellant on July 6,1987.

In the result, the appeal is dismissed with costs of Rs. 5000/- with a direction to the Government to hold an enquiry against the then Tehsildar and the Sub Divisional Magistrate, Phagwara. Such enquiry shall be concluded within six months and the delinquents shall be adequately punished for their misconduct.